The Complainant is Catawiki Services NL BV, Netherlands, represented by Domgate, France.
The Respondent is Domain Administrator, iNET B.V., Netherlands.
2. The Domain Name and RegistrarThe disputed domain name
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 3, 2021. On November 3, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On November 4, 2021, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on November 9, 2021, providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on November 12, 2021.
The Center verified that the Complaint together with the amended Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with the Rules, paragraphs 2 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on November 17, 2021. In accordance with the Rules, paragraph 5, the due date for Response was December 7, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on December 12, 2021.
The Center appointed Alfred Meijboom as the sole panelist in this matter on December 20, 2021. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
4. Factual BackgroundThe Complainant was established in 2008 and operates an online platform for buying and selling special items and collectibles, and since 2011 the Complainant has been hosting weekly online auctions, currently offering over 65,000 objects each week, in various categories, including classic cars, and has more than 10 million unique monthly visitors and uses 17 languages. The Complainant owns several trademarks in many jurisdictions, including Benelux trademark CATAWIKI with registration number 900469, filed on March 22, 2011 and registered on August 10, 2011 for services in classes 35, 38 and 41 (the “Trademark”).
The Respondent registered the disputed domain name on August 5, 2021. The disputed domain name resolved to a website, which offered the disputed domain name for sale.
5. Parties’ Contentions A. ComplainantThe Complainant alleges that the disputed domain name is identical to the Trademark, which it includes in its entirety, and that the Top Level Domain (“TLD”) “.autos” should be disregarded for the purposes of comparison the disputed domain name and the Trademark.
The Complainant further alleges that the Respondent has no rights or legitimate interests in respect of the disputed domain name because the Respondent does not own a CATAWIKI Trademark and is not commonly known by the disputed domain name. The Complainant also alleges that it has never licensed or otherwise authorized the Respondent to use the Trademark as in a domain name.
According to the Complainant, the Respondent registered the disputed domain name in bad faith as it could not have ignored the existence of the Complainant and the Trademark when the disputed domain name was registered. The Complainant also alleges that the Respondent used the disputed domain name in bad faith because the domain name resolved to a selling page which offered the disputed domain name for sale for an amount of EUR 49,888 on September 9, 2021. On October 15, 2021, after the Complainant sent unanswered letters to the Respondent requiring immediate transfer of the disputed domain name, the price for the disputed domain name was increased to EUR 79,888. Furthermore, the Complainant claims that the Respondent, on the last mentioned date, had increased its number of active domain names to 11,110, which domain names included a number of domain names which comprised of well know third party trademarks. Therefore, the Complainant contends that the Respondent seems to be involved in a pattern of cybersquatting conduct. The Complainant claims that the circumstances clearly indicate that the Respondent has registered the disputed domain name for the purpose of selling it to the Complainant or a third party for valuable consideration in excess of the Respondent’s out-of-pocket costs directly related to the disputed domain name.
B. RespondentThe Respondent did not reply to the Complainant’s contentions.
6. Discussion and FindingsThe Respondent did not file a Response. However, as set out in section 4.3 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), the consensus view of UDRP panels is that the respondent’s default does not automatically result in a decision in favor of the complainant. The Complainant must still establish each of the three elements required by paragraph 4(a) of the Policy. Although the Panel may draw appropriate inferences from the Respondent’s default, paragraph 4 of the Policy requires the Complainant to support its assertions with actual evidence in order to succeed in this proceeding. Paragraph 14(b) of the Rules provides that, in the absence of exceptional circumstances, the panel shall draw such inferences as it considers appropriate from a failure of a party to comply with a provision or requirement of the Rules. The Panel finds that in this case there are no such exceptional circumstances.
Under the Policy, the Complainant must prove that:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
(ii) the Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith.
A. Identical or Confusingly SimilarIt is well established that the TLD – in the present case “.autos” – should be disregarded in the assessment under paragraph 4(a)(i) of the Policy. When ignoring the TLD, the Panel finds that the disputed domain name is identical to the Trademark.
Consequently, the first element of paragraph 4(a) of the Policy has been met.
B. Rights or Legitimate InterestsThe Complainant must make a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name, which the Respondent may rebut (e.g., Croatia Airlines d.d. v. Modern Empire Internet Ltd.,
WIPO Case No. D2003-0455).
The Complainant’s claim that it has not authorized the Respondent to use the Trademark, and that the Respondent is not commonly known by the disputed domain name remains unchallenged. Further, the Complainant has shown that the Respondent is not making a legitimate noncommercial or fair use of the disputed domain name in light of the fact that the disputed domain name (identical to the Trademark) resolves to a website which offers the disputed domain name for a substantial amount exceeding the registration related costs, which amount was significantly increased after the Complainant sent the Respondent a cease and desist letter.
The Panel is therefore satisfied that the Complainant has made a prima facie case, which the Respondent has not rebutted. As a result, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name and the second element of paragraph 4(a) of the Policy is also met.
C. Registered and Used in Bad FaithPursuant to paragraph 4(b)(iv) of the Policy, there is evidence of registration and use of the disputed domain name in bad faith where the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the Trademark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s website or location or of a product or service offered on the Respondent’s website or location.
The Complainant has been operating its auction platform under the Trademark from the Netherlands, where the Respondent is also established, for over a decade. And the Complainant also uses the Trademark for an online car auction, while the Dutch word for cars is “autos”. For these reasons and because the Trademark has no autonomous meaning, the Panel finds that the Respondent must have had the Trademark in mind when he registered the disputed domain name in the TLD “.autos”. Therefore, the Panel is satisfied that the disputed domain name was registered in bad faith.
The Panel is also satisfied that the disputed domain name was used in bad faith based on the undisputed facts that that the Complainant sent a cease and desist letter to the Respondent, to which the Respondent did not reply but rather increased its public offer to sell the disputed domain name with EUR 30,000 to an amount of EUR 79,888, which undoubtedly exceeds the out-of-pocket costs directly related to the disputed domain name, while the Respondent, who undisputedly offers for sale many other domain names which comprise third party trademarks, being involved in a pattern of cybersquatting conduct.
Consequently, the third and last element of paragraph 4(a) of the Policy is also met.
7. DecisionFor the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name
Alfred Meijboom
Sole Panelist
Date: December 23, 2021